“Abstinence-only” Education Not a Free Pass for Anti-Gay Discrimination

ACLU

A recent Florida federal court decision in an ACLU case did a lot more than simply make advocates for both reproductive freedom and for lesbian, gay, bisexual, and transgender rights very happy: It signaled that the days when folks could get away with making outlandish anti-LGBT arguments are going, going, and almost gone.

Ruling in favor of students who wanted to start a gay-straight alliance club at Okeechobee High School, a conservative judge found that school officials had violated the federal Equal Access Act, which guarantees the right of students in public schools to form clubs. And he clearly didn’t buy the school’s excuse that it should get off the hook for blocking the GSA because it receives federal funds for its “abstinence-only” program. A gay-straight alliance, the school had argued, is a “sex-based” club — which was news to the students who only wanted to talk about how to cut down on anti-gay bullying at their school and have the occasional pizza party.

In the ruling, the court recognized what those of us who advocate for comprehensive sex education have known for years: In addition to being a colossal failure for heterosexual teens, federally-funded abstinence-only-until-marriage programs by definition exclude LGBT teens. Recipients of this money ($1.5 billion to date and counting) must teach that “a mutually faithful monogamous relationship in the context of marriage is the expected standard of human sexual activity” and that “bearing children out-of-wedlock is likely to have harmful consequences for the child, the child’s parents, and society.” Now take the federal definition of “marriage” that applies to these programs — that marriage is limited to a man and a woman — and combine it with the fact that same-sex couples cannot marry in all but two states, and voila: the result is that abstinence-only-until-marriage programs discriminate against LGBT students.

The court noted that abstinence-only programs “do not provide information of a kind usable by non-heterosexuals to prevent disease.” And it implicitly recognized that LGBT individuals have a right to form intimate relationships and to parent, noting that teaching about the benefits that accrue to children with married parents is of “little use to . . . non-heterosexual students who may aspire to parenting but lack the prospect of a legally sanctioned marriage.” The court concluded by saying that abstinence-only-until-marriage programs are therefore of “limited utility to . . . non-heterosexual students, the well-being of whom must also be considered.”

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Florida: Okeechobee High School Gay-Straight Alliance Wins Groundbreaking Federal Lawsuit

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OKEECHOBEE, Fla. – The American Civil Liberties Union today announced that Federal Judge K. Michael Moore ruled that school officials in Okeechobee, Florida, must allow a gay-straight alliance (GSA) club to meet on campus. In precedent-setting order, the judge upheld his earlier ruling that GSAs do not interfere with abstinence-only education and in a legal first, holds that schools must provide for the well-being of gay students.

Moore also broke the legal mold by asserting that schools must provide for the well-being of gay students the same as straight students and therefore, the school cannot discriminate against the GSA. In the order, the court grants students in the GSA “all the rights and privileges granted to other noncurricular groups.” The victory is the second federal student rights case won by the ACLU of Florida’s LGBT Advocacy Project and the national ACLU LGBT Project this summer.

“Judge Moore’s ruling that GSAs are beneficial to gay students and that they don’t harm straight students is unparalleled. This is a clear victory for the students, for the Okeechobee GSA and indeed for all high school students in Florida,” said Robert Rosenwald, Director, ACLU of Florida LGBT Advocacy Project. “These are brave students who would not be silenced and did not tolerate discrimination. So many children cannot stand up, but hopefully this ruling will serve as warning to other Florida schools that equal access truly means equal access, and schools that choose not to follow the law will be inviting similar litigation.”

The ACLU prevailed in Okeechobee on both Equal Access Act and First Amendment grounds. The federal Equal Access Act (20 U.S.C. § 4071(a)) requires schools that allow any extracurricular activities to meet on campus to allow all extra-curricular student groups to do so, and to treat every club equally.

Regarding the First Amendment, Judge Moore quoted the famed 1969 Tinker case stating that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Moore went on to state that “the desire of the GSA to meet as a group to discuss matters pertinent to the challenges presented by their non-heterosexual identity and to build understanding and trust with other heterosexual students sounds in the political speech addressed in Tinker.”

In referencing Tinker, Moore refers to Gillman v. School Bd. For Holmes County, Fla., a First Amendment case won by the ACLU in May after a two-day trial in which the high school principal testified that he believed clothing or stickers featuring rainbows would make students automatically picture gay people having sex. In June, federal judge Richard Smoak ordered Ponce de Leon High School to pay $325,000 in legal fees to the American Civil Liberties Union after ruling that the school violated student Heather Gilman’s Constitutional rights to free speech. Gillman and her friends were suspended from school after wearing clothes and stickers supporting their openly gay friends.

Moore noted “that the GSA's tolerance based message would not materially or substantially interfere with discipline in the operation of the school. In order for [the school board] to justify its refusals to recognize the GSA as a student organization, ‘it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.’ This is precisely what [the school board] has failed to do.”

This order will allow the lesbian, gay, bisexual, transgender and straight students to meet on campus to discuss issues about bullying, tolerance and discrimination, just as other non-curricular clubs do. GSAs across the state and country have been shown to help gay and straight students feel safer at school, and provide an open forum for students to discuss their fears, hopes and challenges.

“I can’t tell you how happy I am that the judge agreed we have a right to create a safe space for gay students at my school,” said Brittany Martin, a 17-year-old upcoming senior at OHS who is the GSA’s president. She added, “All we’ve ever wanted was to have a club to talk about tolerance and harassment so we can try to make our school a better place for all students.”

“It has been a long road and we are very pleased with the outcome. Hopefully now the students at Okeechobee High School can start the new school year with a clean slate and openly discuss the problems they face with fellow classmates,” added Rosenwald.

The ACLU filed the federal lawsuit in November 2006 after students at Okeechobee High School were denied access to meet on campus by their principal, Toni Wiersma. Then-senior Yasmin Gonzalez approached the ACLU and after several failed attempts by the ACLU to convince the school to comply with the Federal Equal Access Act, the lawsuit was filed. After hearing oral arguments from both sides in February, the judge denied the school’s motion to dismiss the case.
The ACLU won a preliminary injunction in 2007 allowing students to meet on campus after repeated failed attempts by the defendants to characterize the club as “sex-based”. ACLU lawyers later defeated the school’s attempts to get the case dismissed.

The Federal Equal Access Act requires schools to treat gay-straight alliances as they would any other school group. Federal courts have repeatedly ruled in favor of GSA’s where schools tried to block their formation, upholding students’ right to form the groups across the U.S., including in Salt Lake City, Utah; White County, Georgia; Orange County, California; Franklin Township, Indiana; and Boyd County, Kentucky.

Lead attorney in Yasmin Gonzalez vs. School Board of Okeechobee County was Robert Rosenwald, Director of the ACLU of Florida’s LGBT Advocacy Project, with assistance from Ken Choe of the ACLU’s national LGBT Project and Zeina Salam of the ACLU of Florida. A copy of the opinion in can be viewed in PDF at: http://www.aclufl.org/pdfs/GSA_MSJ.pdf

About the ACLU of Florida The American Civil Liberties Union (ACLU) of Florida is freedom's watchdog, working daily in the courts, legislatures and communities to defend individual rights and personal freedoms guaranteed by the Constitution and the Bill of Rights. For additional information, visit our Web site at: www.aclufl.org.

Florida: Okeechobee GSA trial reinstated

FOLLOWUP: read previous article

by Steve Rothaus
The Miami Herald

A federal judge in Florida has reinstated an ACLU lawsuit on behalf of students at Okeechobee High School who are trying to form a gay-straight alliance (GSA). The case, which started back in November 2006, was dismissed earlier after the only remaining member of the GSA transferred out of the school. At that time, the court dismissed the case even though a new student came forward wanting to participate in the GSA. Although we had argued that the former students should be able to proceed because they were entitled to nominal damages, the court disagreed.

We asked the court to reconsider its decision. The court did something courts don’t do that often: it completely changed its mind. The Court reinstated the lawsuit, which is now scheduled for trial in September. And perhaps best of all, the court said it will now allow the former members of the GSA to proceed in the case for nominal damages.

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FOLLOWUP: Florida HS says GSA has no members

original article: http://www.2015place.com/2007/11/florida-high-school-fights-gay-straight.html

The Gay-Straight Alliance of Okeechobee High School no longer has any members and has been dropped from a lawsuit against the Okeechobee County School Board.

Meanwhile, attorneys for the school district want the judge to dissolve an order that had forced the school to allow the club to meet on campus. In a document filed Wednesday, school board attorney David Gibbs said it is "inequitable" to force the school to permit a club "that has no members, no officers, no meetings and no events."

After Gonzalez graduated in 2007, student Jessica Donaldson took over duties as president until February, when she transferred to another school, according to court records.

Another student, Stephanie Gardner, briefly served as president but since has left the school. According to attorneys for the ACLU, Gardner left because she felt the school "was not providing her with the support she needed in order to graduate." Gibbs said in his filing that Gardner "failed to abide by basic OHS rules" and "was withdrawn" by school officials.

Attorneys for the school board have argued that the Gay-Straight Alliance is a "sex-based club" that violates a state law requiring schools to teach abstinence "while teaching the benefits of monogamous heterosexual marriage."

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Florida High School fights Gay-Straight alliance group

Attorneys for the Okeechobee County School Board plan to use experts who will testify about the "negative health effects of homosexual sex" in their fight to stop the Gay-Straight Alliance from meeting at Okeechobee High School.



"This is the most rabidly homophobic response that the school board could have taken," American Civil Liberties Union attorney Robert Rosenwald said about a summary of the school board's planned witness testimony in an upcoming trial.


The ACLU represents the Gay-Straight Alliance of Okeechobee High School and former student Yasmin Gonzalez, who sued the school board a year ago, saying it violated federal law by allowing other clubs to meet on campus but not the alliance.


A judge has said the club can meet on school grounds while the case works its way through court. The trial is scheduled to start in March, but Rosenwald asked this week that the date be pushed back to September to allow more time to prepare.


The attorneys have argued that the Gay-Straight Alliance is a "sex-based club" that violates a Florida statute requiring schools to teach abstinence "while teaching the benefits of monogamous heterosexual marriage." However, in his April ruling allowing the club to meet at least temporarily on school grounds, U.S. District Judge K. Michael Moore said the school board had failed to show that the Gay-Straight Alliance would expose students to obscene or explicit material.


Regardless of people's views on homosexuality, Okeechobee High School is obligated under federal law to allow the alliance to meet on school grounds.